Analysis: Where independent journalism will land you in prison

In October 2021, I gave a voluntary interview to two FBI agents about my coverage of the events at the U.S. Capitol on January 6. At one point, Special Agent Craig Noyes slid a photo across the table and asked me if I knew the young man pictured. The picture had been taken inside the U.S. Capitol Building. I didn’t know him, though I recognized him from videos I’d captured on my own camera that day.

“Is he a bad guy?” I asked Agent Noyes.

“Yes.”

I eventually met the young man in the photo. His name is Stephen E. Horn. He’s just 25 years old and has been an independent journalist since he was 16. He is anything but a “bad guy.”

As it happens, Horn lives not far from me in the Raleigh-Durham area of North Carolina. He reached out to me in December 2021 to ask if I would be interested in appearing in a documentary he was producing about January 6.

A jury in a Washington, D.C., federal court on Monday found Horn guilty of the same four misdemeanor offenses that hundreds of other nonviolent “accidental tourists” have been convicted of — all for simply walking through open doors at the Capitol on the day Congress was scheduled to certify the Electoral College vote from the highly contentious 2020 presidential election.

Those offenses include “entering or remaining in a restricted area,” “disorderly or disruptive conduct in a restricted area,” “disorderly conduct in the Capitol Building,” and “parading, demonstrating, or picketing in the Capitol Building.”

Horn damaged no property on January 6, 2021. He did not fight with the police. He maintains he was there acting as a journalist. In fact, he contacted the FBI the very next day to share his video from the event to aid in the bureau’s investigations. He cooperated in every way.

Nevertheless, the FBI arrested Horn on April 9, 2021. He was hauled before a Wake County magistrate in arm and leg chains on the same day, as though he were a violent felon.

Horn’s attorney, Marshall Ellis, argued that his client had a long track record of independent journalism. Ellis attempted to introduce evidence, including press passes and badges for events Horn had covered going back to when he was a homeschooled high school student, showing he had covered a wide range of protests, including demonstrations following George Floyd’s death in 2020 and the COVID lockdowns.

Because of his experience during the 2020 riots, Horn learned the necessity of blending in with crowds, as so many journalists and videographers had been attacked and severely injured by Antifa and other violent leftist provocateurs. To avoid being immediately identified or associated with any group, or even as “press,” Horn fashioned a hidden camera inside a skateboard helmet for January 6. Rumors were rampant on the internet that Antifa might disrupt the scheduled events that day, just as the group had done at similar MAGA rallies held in D.C. in November and December 2020.

Horn came prepared as one among other young riot-chasing journalists. Many of them have attracted significant attention for their work on January 6, including Elijah Schaffer, Tayler Hansen, Brendan Gutenschwager, and Ford Fischer.

None of those young journalists have been charged with crimes related to their coverage of January 6. Yet they were in the building or on “restricted grounds,” just as Stephen Horn was. Horn had no advance knowledge of what would ultimately occur at the Capitol that day. He followed the story where it went — inside the Capitol Building itself. So what make makes Horn so special that he needed to be charged with four federal misdemeanors and placed in chains following his arrest?

Words, not deeds.

According to the “statement of facts” Special Agent Noyes prepared for the Department of Justice to justify Horn’s charges and arrest, at one point in the video, the “voice consistent with HORN’s states with a raised voice ‘U.S.A.’ while inside the Capitol.”

That’s it. As part of his effort to blend in with the crowd, Horn joined chants of “U.S.A., U.S.A., U.S.A.”

Horn did not need to go to trial. Federal prosecutors offered him a plea deal that included three years of probation, a $1,000 fine, and probably a few hours of community service. Instead, he demanded his right to a jury trial, which was presided over by Judge Timothy Kelly, the same jurist who sentenced Proud Boys leader Enrique Tarrio to 22 years in prison two weeks ago.

By the numbers — based on previous January 6 trials — defendants who have a track record of journalism and tried using that in their defense have not fared well.

Jesus Rivera of Pensacola, Florida, is an experienced videographer and photojournalist. His path into and around the Capitol on January 6 paralleled that of Luke Mogelson, who captured the infamous scenes of Jacob Chansley, the “QAnon Shaman,” in the Senate chamber.

There were two stark differences between Rivera’s and Mogelson’s coverage of the events that day.

First, Rivera brought with him expensive, professional camera gear. Mogelson recorded those iconic scenes on his cell phone.

Second, and perhaps more importantly, Mogelson submitted his story to the New Yorker, under the get-out-of-jail-free title, “Among the Insurrectionists,” while Rivera made a mistake similar to Horn’s. According to the statement of facts used to charge Rivera, he, too, apparently said the wrong thing.

“Record numbers here in D.C. . . . Hey guys, if you are on here, share this live because I am about to take my ass to the middle of the state capitol and see what’s going on, where they are trying to jump in.” (Rivera said “state capitol,” but he clearly meant the “U.S. Capitol.”)

Mogelson’s cellphone videos received international attention. But Rivera’s words — captured on his professional gear — earned him the distinction of being the first January 6 defendant to be arrested in Florida. After a bench trial in D.C., Rivera was sentenced to eight months in prison for his misdemeanor trek through the Capitol — walking alongside Mogelson much of the way.

At the outset of Horn’s trial, Judge Kelly remarked that there was really not much in dispute between the government and the defendant. Federal prosecutors Ashley Akers and Sonia Williams Murphy refused to acknowledge Horn’s claims that he was present as a journalist and in their opening argument said he was just “one of those rioters.” They added, “On January 6, he was part of the mob.”

In his opening statement, Horn’s attorney told jurors, “You are being asked to decide: Press or protest?” Unfortunately, Judge Kelly denied Marshall Ellis’ motions to present a case based on selective prosecution, which would have allowed him to compare and contrast Horn’s work and behavior with that of the nearly 100 other journalists who were identified entering the Capitol on January 6 yet remain uncharged.

Two of the government’s key witnesses against Horn were U.S. Capitol Police Lt. George McCree and D.C. Metropolitan Police Lt. Valerie Patete. Neither officer had encountered Horn in the Capitol and knew nothing about him prior to their pretrial preparation by prosecutors. They were there simply to authenticate videos of violence presented to the jury — violent scenes in which Horn did not appear and was not involved.

A third government witness — FBI Special Agent Noyes — merely walked the jury through Horn’s own two-hour video, which he had uploaded to Facebook late in the evening of January 6. “I did not enter the Capitol Building as part of the protest or for cheap thrills,” Horn can be heard saying in the video, “but to accurately document and record a significant event which was taking place.”

The D.C. jury was not convinced.

Horn’s sentencing hearing is scheduled for January 10, 2024.